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DLG Represents Farmers in Lawsuit Over Water Usage Rights

Nebraska Irrigator Lawsuit

Water. Many battles have been fought over differing opinions on how to allocate this finite resource. Irrigation is a huge worry for farmers in Nebraska and throughout the United States, and Domina Law Group is committed to fighting for farmer's rights.

In 2013, the state of Nebraska sent surface water to Kansas in compliance with the Republican River Compact, bypassing state irrigators. In a lawsuit filed by David Domina and Megan Mikolajczyk on behalf of the irrigators, the plaintiffs allege that, while the state did have the right to take the water for a public purpose, the state is required to compensate the farmers for damages.

The Attorney General disagrees. While the Domina Law Group is advocating that the plaintiffs' right to use the water is superior to the state's use of the water, Attorney General Jon Brunig wrote in his motion to dismiss brief that the state's use of the water per obligations set forth in the Republican River Compact is superior. Brunig also wrote that the state should not be required to pay damages to the irrigators because the state's use of the water came through adherence to a binding compact.

Usage Rights vs. Property Rights

Domina Law Group, in the brief written on behalf of plaintiffs, cites the Nebraska Constitution Section 21, Article 1 which states that the state of Nebraska cannot take or damage a Nebraskan's property for public use without compensating them. The question then arises – does this groundwater fall into the category of property?

The state is claiming this is a usage right, not a property right, and therefore non-compensable.

Inverse Condemnation

Domina and Mikolajczyk refer to this as an incident of "inverse condemnation." The state of Nebraska took no initiative to appraise and put a value on the farmers' property rights. Conversely, the state says it has no authority to initiate condemnation proceedings on water, and compensation is only offered to landowners whose property has been condemned.

We will stand up in Furnas County District Court this Wednesday to debate the state on this issue.

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